Kimkins Class Notice

Although late, Heidi Diaz finally complied with the court order to post a notice about the class action lawsuit on her website kimkins.com. Or rather, she almost complied.

She was ordered to

THE COURT ORDERS THAT CLASS NOTICE SHALL BE PROVIDED THROUGH DEFENDANTS WEBSITE. THE NOTICE MAY BE THROUGH A LINK ON THE WEBSITE WHICH LEADS TO THE CLASS NOTICE.

She posted the notice with a link that is not functional. No doubt will she blame "technical difficulties." You would think after having had a website business for over two years, she would have learned some basic things. Like a simple file upload.

Just to show how easy it is: To open a pdf of the document, click this link: NOTICE OF PENDENCY OF CLASS ACTION

It took me all of two minutes to upload it to my website.

Of course, she could have made it even easier for herself by linking to any of the anti-kimkins blogs that have already posted the notice.

Hopefully the court will find Heidi in contempt and fine her for not complying with the court order in a timely fashion. Surely, even a person that is not familiar with web sites and web technology must find any excuse of "technical difficulty" to be ridiculous. Really, if she can not perform such a simple thing, she has no business selling membership to a website that she is running.

NOTICE OF PENDENCY OF CLASS ACTION

NOTICE OF PENDENCY OF CLASS ACTION

TO: EVERYONE WHO PURCHASED A MEMBERSHIP TO KIMKINS.COM THROUGH THE KIMKINS.COM WEB SITE (www.kimkins.com) FROM JANUARY 1, 2006 TO OCTOBER 15, 2007

PLEASE READ THIS NOTICE CAREFULLY. YOUR RIGHTS MAY BE AFFECTED BY A CLASS-ACTION LAWSUIT THAT IS CURRENTLY PENDING IN RIVERSIDE COUNTY SUPERIOR COURT, IN RIVERSIDE, CALILFORNIA.

INTRODUCTION

1. On May 20, 2009, the Riverside County Superior Court, located in Riverside, California, issued an order certifying this case to proceed as a class action.

2. The plaintiffs are six individuals who bought memberships to kimkins.com through the kimkins.com Website (www.kimkins.com) from January 1, 2006 to October 15, 2007. The defendants are Heidi Diaz, an individual, and Kimkins (also known as Kimkins.com), a business entity that conducts business in Corona, California.

3. The plaintiffs contend that Diaz and Kimkins.com induced them into buying memberships for kimkins.com through false and misleading information provided on the Kimkins.com Web site. The plaintiffs contend that the defendants violated California Business & Professions Code § 17200, et seq., which authorizes courts to provide relief from unfair, unlawful, and fraudulent business practices. The plaintiffs also contend that Diaz and Kimkins.com violated common law prohibitions against fraud and negligent misrepresentation.

4. This notice provides you with information regarding the litigation, including the plaintiffs’ claims against the defendants and the current status of the litigation. This notice also provides you with information regarding the court’s class-certification order.

THE LITIGATION

The Plaintiffs’ Claims

5. This lawsuit is based on the plaintiffs’ claims that Diaz and Kimkins used unfair, unlawful, or fraudulent business practices to induce them into buying memberships to Kimkins.com. This lawsuit is also based on the plaintiffs’ claims that the false and misleading information contained on the kimkins.com Web site constituted fraud or negligent misrepresentation by Diaz and Kimkins.

6. Here’s a list of the kinds of misconduct that the plaintiffs have alleged:

• that Diaz and Kimkins concocted a false persona, “Kim Drake” or “Kimmer” to sell memberships to Kimkins.com
• that Diaz and Kimkins misled potential members into believing that “Kim Drake” was real by using photos of real women and then falsely claiming that the photos depicted “Drake”
• that Diaz and Kimkins posted lied about “Drake’s” purported weight loss
• that Diaz and Kimkins provided false or misleading information to Women’s World magazine
• that Diaz and Kimkins fabricated 41 “success stories” and published on the Kimkins.com Web
• that Diaz and Kimkins made up celebrity endorsements
• that Diaz and Kimkins misused labels and metatags to steer Internet traffic to the Kimkins.com Website, in violation of the law
• that Diaz and Kimkins misled potential members into believing that they were buying lifetime memberships, when in fact Diaz and Kimkins.com terminated memberships at their whim
• that Diaz and Kimkins intended to mislead potential members and assumed that potential members would rely on her misrepresentations.

The Defendants’ Position

7. Diaz and Kimkins have denied all allegations of wrongdoing and liability, and they continue to deny that they have done anything wrong. Diaz and Kimkins also have asserted various affirmative defenses to the plaintiffs’ claims.

THE COURT’S CLASS-CERTIFICATION ORDER

8. In an order filed May 20, 2009, the Court granted the Plaintiffs’ Motion for Class Certification. The Court certified for class treatment the plaintiffs’ claims for equitable relief, including disgorgement of the subscription fees paid to Diaz and Kimkins by the plaintiffs and the members of the class.

9. The certified class is defined as all individuals who purchased the Kimkins.com diet membership on-line from the Kimkins.com Web site from January 1, 2006 through October 15, 2007.

THE COURT HAS NOT EXPRESSED ANY OPINIONS
REGARDING THE MERITS OF THE PLAINTIFFS’ CLAIMS

10. The Court ordered that this notice be provided to advise class members that this case is pending and that the Court has certified the case to proceed as a class action. You should not consider this notice or its mailing to be a statement by the Court that the plaintiffs are right or that their claims will prevail.

INSTRUCTIONS TO CLASS MEMBERS

11. You do not need to do anything to remain a member of the class. If you bought a Kimkins.com diet membership on-line from the Kimkins.com Web site from January 1, 2006 through October 15, 2007—including either of those dates—you are automatically included in the class. Your rights will be represented by the plaintiffs and their attorneys. You will not be personally responsible for any attorney fees or for the any of the costs of this litigation.

OPT OUT OF CLASS ACTION LAWSUIT

12. You have the opportunity to opt out of the class action lawsuit as detailed herein. If you incurred a personal injury as a result of using the Kimkins.com aka Kimkins Diet, you have a right to opt out. Notices to opt must be sent to jtiedt@tiedtlaw.com or mailed to Tiedt & Hurd at 980 Montecito Drive, Suite 209, Corona, California 92879.

WHERE TO GO & WHOM TO CONTACT
SHOULD YOU NEED MORE INFORMATION

13. This notice provides only a brief summary of this litigation. For further details, you should take one or both of the following steps:

• Review the documents in the Court’s file for this lawsuit. Many of these documents may be viewed or obtained on-line at the following URL: http://public-access.riverside.courts.ca.gov/OpenAccess/ . You also may review the Court’s file in person by going to the Office of the Clerk of the Court for the Riverside Superior Court, during regular business hours. The Clerk’s office is located at 4050 Main Street, Riverside, California 92501.

• Write a letter to the attorneys who are representing the plaintiffs and whom the Court has appointed to represent the class. Here are their names and their contact information:

John E. Tiedt & Marc S. Hurd
Tiedt & Hurd
980 Montecito Drive, Suite 209
Corona, California 92879

Michael L. Cohen
Michael L. Cohen, a PLC
707 Wilshire Blvd., Suite 4100
Los Angeles, California 90017

Ray Moore
Moore Winter McLennan LLP
701 N. Brand Blvd., Suite 200
Glendale, California 92103-4232

If you decide to contact one of the plaintiffs’ attorneys, please do so in writing. To make it easier for them or one of their staff members to respond, however, your letter should include both your e-mail address and your telephone number.

There are estimated to be as many as 40,000 members in the class. So please, DO NOT CALL THE COURT OR ATTEMPT TO CONTACT THE COURT BY E-MAIL.


DATE: ___________________________, 2009


____________________________________
Hon. _________________________,
Presiding Judge

Kimkins Opt Out Notice

There was a court decision for the Kimkins Class Action Lawsuit on 10/27/2009. According to that decision, Heidi Diaz will be required to post an opt out on her website.

To me, the natural thing would have been to require Heidi to use her extensive spam database that sends out Kimkins Newsletters to all members, including us that have been banned. Of course, Heidi supposedly has "lost" all her records and it might be hard to prove that this isn't the case.

I'm looking forward to see the opt out notice. From the text below, it is clear that this has nothing to do with people wanting to support Kimkins and that think that this is a frivolous lawsuit. The opt out is meant to protect people that may want to sue Kimkins for personal injury. While the "injury" as such is not specified, my guess would be that the court had concerns about the numerous reports about health issues arising from following the Kimkins diet.

I'm also looking forward to the next hearing on 10/29/2009. Will we finally see an order to shut Kimkins.con down? However, the court site says "finalization of notice" for tomorrow's hearing so the end of Kimkins.con will probably take place at a later date. Lawsuits take time but I have no doubt it will happen.

COURTS SUBSEQUENT RULING ON 10/27/09 @ 08:30 FOR DEPARTMENT 05
10/27/2009 - 8:30 AM DEPT. 05

HONORABLE MARK E JOHNSON, PRESIDING
CLERK: M. MARTINEZ
COURT REPORTER: NONE
COURT SUBSEQUENTLY RULES:
ORDER REGARDING CLASS NOTICE: THE COURT FINDS THAT CLASS MEMBERS SHOULD BE ALLOWED TO OPT OUT IN CONNECTION WITH THE CLASS ACTION CERTIFIED IN THE ABOVE ENTITLED ACTION.
THE CLASS ACTION WAS NOT CERTIFIED FOR THE PERSONAL INJURY CLAIMS ALLEGED BY CLASS
PLAINTIFFS. FAILURE TO ALLOW CLASS MEMBERS TO OPT OUT OF THE ACTION MAY IMPAIR OR ELIMINATE POTENTIAL PERSONAL INJURY CLAIMS BECAUSE A JUDGMENT IN THIS ACTION COULD BAR RECOVERY IN ANY LATER PERSONAL INJURY ACTIONS BROUGHT BY CLASS MEMBERS AGAINST DEFENDANTS. (SEE HICKS V. KAUFMAN & BROAD (2001) 89 CAL.APP.4TH 908 924-925.)
THUS, IT APPEARS THAT THE OPPORTUNITY TO OPT OUT OF THIS CLASS ACTION IS NECESSARY. (SEE PHILLIPS PETROLEUM CO. V. SHUFFS (1985) 472 U.S. 797, 811-812.) ACCORDINGLY, PLAINTIFFS PROPOSED CLASS NOTICE NEEDS A STATEMENT WHICH GIVES POTENTIAL CLASS MEMBERS WHO MAY HAVE SUFFERED PERSONAL INJURIES AN APPROPRIATE CAVEAT REGARDING POTENTIAL PERSONAL INJURY CLAIMS, PROVIDES THE OPPORTUNITY TO OPT OUT, AND PROVIDES A PROCEDURE FOR OPTING OUT. (SEE CHAVEZ V. NETFLIX (2008) 162 CAL.APP.4TH 43, 57.)
IN ADDITION, PLAINTIFFS SUBMISSION DOES NOT EXPLAIN WHY CLASS NOTICE CANNOT BETTER BE PROVIDED THROUGH DEFENDANTS OWN WEBSITE TO ALL PERSONS WHO SIGNED UP THROUGH THE WEBSITE.
ACCORDINGLY, THE COURT ORDERS THAT CLASS NOTICE SHALL BE PROVIDED THROUGH DEFENDANTS WEBSITE.
THE COURT MAKES THIS DECISION BECAUSE THE LAWSUIT HAS ALREADY BEEN REFERENCED ON THE KIMKINS WEBSITE. THE NOTICE MAY BE THROUGH A LINK ON THE WEBSITE WHICH LEADS TO THE CLASS NOTICE.
FINALLY, ALL REFERENCES TO THE "PENDING MOTION FOR SUMMARY JUDGMENT" SHALL BE REMOVED FROM THE CLASS NOTICE.
NOTICE TO BE GIVEN BY COURT CLERK'S CERTIFICATE OF MAILING RE: SUBSEQUENT RULING
NOTICE SENT TO MICHAEL L COHEN A PROFESSIONALLAW CORP ON 10/27/09
NOTICE SENT TO MOORE WINTER MCLENNAN LLP ON 10/27/09
NOTICE SENT TO TIEDT & HURD ON 10/27/09
NOTICE SENT TO LAW OFFICE OF TIMOTHY P PEABODY ON 10/27/09
NOTICE SENT TO LAW OFFICES OF COTTLE & KEMP ON 10/27/09
NOTICE SENT TO COTTLE & KEEN ON 10/27/09

Kimkins Court Hearing

There was a hearing today for Summary Judgment for the Class Action Suit against Kimkins.

All the details are not out yet, but it was decided that Heidi has to post an "Opt-Out Notice" on Kimkins. The notice is also to be posted on one more site in order to reach as many class action members as possible.

The Opt-Out Notice will give the option for any eligible class action member to reserve the right to sue Heidi individually instead of taking part in the class action suit. I don't see it as likely that anybody would want to do this in this case, but it seems to be a requirement for any class action lawsuit that this option is provided.

So much for the lawsuit being dismissed, Heidi. I'm looking forward to seeing the Opt-Out Notice on Kimkins.con. And your explanation for it.

The End of Kimkins

Is that what we will see from the upcoming court hearing on October 15? Despite what Heidi Diaz claims, the case was not dismissed, the judge was just not ready to make a decision and postponed doing so. To my understanding, this didn't even have anything to do with the viability of the lawsuit. It had to do with an opt-out technicality for the class action members. (Typically, a class member is given an option to not partake in a class action lawsuit in order to be able to sue the defendant individually.)

Heidi seems to be struggling to keep kimkins afloat. The forum was moved to a new platform and without all the old posts from the previous years, it is very obvious how few members that are there. Her google ads have stopped. It's likely that they didn't result in many new customers and they are costly to run.

Heidi is most likely finding out that internet marketing is not all that easy. Without having the advertizement from a Woman's World article that draw customers, it's not easy to attract them to an obscure diet on the internet. Kimkins has outlived its fame. The only ones that are familiar with the name are people that know about the scam, and they don't work well as a customer base. Any new people coming across the website are likely not impressed.

I do hope that the court hearing on Thursday will result in Heidi having to close kimkins.con down. But even if there are further delays, I am positive that kimkins is a dying enterprise. It's just a matter of time. I can't see that Heidi would keep kimkin.con running as a service to the few members that are there. Judging from all the bannings, she is not really a caring person.

Of course, the hearing on Thursday might not even take place. Perhaps Heidi decided to file for bankruptcy again. But this time, I think she might have problems showing much income from kimkins.com. So why would a bankruptcy court allow her to restructure a business that doesn't even make money? Hopefully any bankruptcy lawyer she has hired would have informed her about this so we can avoid yet another unnecessary delay of the class action hearing.

The "New" Slimmer Kimkins

No, I don't think Kimmer herself has slimmed down, but the website has.

While Heidi Diaz has tried to copy the design from the old site, it shows that she doesn't have the graphics knowledge that her previous web techs had. Of course, it's costly to keep a professional team on board and when there is little income from new members signing up, Heidi apparently decided to take it over herself.

New Kimkins

Old Kimkins

The previous site was build on joomla and firebird forum which, while free, require some web program ability. The new site is using SMF (Simple Machines) forum software which is free and simpler to configure. If it were me, I would have invested in the very affordable vBulletin forum as it's very easy to use. And, that's what I did on my forum: Tipping the Scales to Health.

Did you notice that she has even changed the Kimkins logo? I recall that there was someone that showed how the original was copied from one of the Russian Bride websites, so perhaps this is an attempt of avoiding this being brought up in the ongoing Class Action Lawsuit.

The new site displays a lot of old success stories. People that are not seen on the Kimkins forum any more (if they were even there in the first place). Where are these people now? Unfortunately, I believe most of them have regained their weight. It happens more often than not following a starvation diet like Kimkins. I do hope they have found a more sensible weight loss program by now and are working towards health and not continuing the yo-yo cycle.

And it doesn't matter if Heidi is now trying to rewrite history. The class action lawsuit is still going strong. Heidi told her members that it had been dismissed, but that is not true. A decision for summary judgement was delayed, not dismissed. You can see for youself: Say NO to Kimkins has posted the pdf file of the decision.

Kimkins in the News

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